The awkward matter of DRM and copyright exceptions
There are probably few that would not agree that the anti-circumvention rules in the European Copyright Directive (EUCD) are a little tricky, if not to say awkward, or, let's be honest: simply not very well thought-through. Protecting right holders against greedy pirates may be a good and noble cause. Trouble is: the task of the copyright legislator is more complex than that. His task is, on the one hand, to protect and stimulate rights holders and, on the other hand, to promote the broad dissemination and use of works and to protect the public interest in works. Copyright law is a compromise between the economic and moral interests of right holders and public information policy interests in letting all of us benefit from creation and knowledge (Bard and Kurlantzick 1999). Though technological protection measures may, as some argue, benefit right holders in their battle against piracy, the reality is that the way technological measures are applied is often in conflict with cherished and broadly acknowledged principles of copyright law. The private copying exemption is one of these, to name but one, probably the most popular example.

Over the past three years important case law has evolved in France concerning the relationship between DRM users and consumers (cf. Helberger 2004, 2005a, 2005b, 2006). The French cases also informed lawyers, policy makers and academics outside of France. Having said that, the French decisions are binding only among the parties to the process, and cannot replace a more systematic approach to the conflict between DRM and copyright. To develop the latter is task of the French parliament, as the European Copyright Directive itself already states (in Article 6 (4) of the European Copyright Directive).

Copyright reform in France
As a matter of fact, that is exactly what the French Parliament is trying to do these months, in project Dadvsi (Le Project de Loi (N° 1206) relatif au droit d'auteur et aux droits voisins dans la société de l'information). Project Dadvsi serves the long-pending implementation of the EUCD, including, of course, the provisions about technological measures. Project Dadvsi took an interesting turn. Originally, the project was clearly destined to boost the legal position of the content industry, with proposals for the extensive protection of technological measures, draconic fines for file-sharers (jail up to three years), restrictions on the use of free software, mandatory obligations to implement DRM à la broadcasting flag, etc. Much to the horror of Minister of Culture Renaud Donnedieu de Vabres, the project then changed under the influence of massive external protests and some obstinate parliamentarians (socialists, who else) into a passionate discussion about guarantees for the private copy, legalising p2p networks and making interoperability of DRM mandatory. About 200 suggested amendments and lengthy heated discussions thwarted his initial plan to pass the law quietly and peacefully around Christmas 2005. Amendments suggested included interesting proposals like that technological protection measures should only be implemented with the knowledge/authorisation of the original author of that work (Amendment No. 84) or the suggestion to guarantee the private copying exception (Amendments No. 153 and 154). It remains to be seen which of these amendments will make it into the final bill. It would lead too far to discuss in this article all amendments, instead, we will concentrate on the transposition of the infamous Article 6 (4) EUCD in Article 8 of the draft law.

A French DRM-sarabande: One step to the front, five steps back
Article 8 of the draft law basically states that right holders will take initiatives to allow users to benefit from a private copying exception or an exception in favour of disabled persons. The rest of the draft article then concentrates on listing limitations to this obligation:

  1. This only applies to consumers that have rightful access to the work (a provision that stems from the EUCD).
  2. The obligation only applies in case the exception does not conflict with normal exploitation interests or legitimate interests of the author.
  3. The right holder, furthermore, has the possibility to restrict the number of copies allowed.
  4. The obligation does not apply to works that are made available on demand and at individual request, thereby excluding all download online services such as iTunes, movielink, etc…
  5. And, finally, it is difficult to see how the obligation could be effective.

Why the present approach is a farce
The French legislator made the lion warden of the sheep. Admittedly, it seems a logical and fair step to burden users of DRM with the responsibility to make sure that the technology is applied in a way that respects the existing legal order. This was also the finding of the Tribunal the Grand Instance Paris. Having said this, any such obligation is of little value without accompanying measures that guarantee its enforcement (interesting, for the field of environmental law, see Börkey, P.; Glachant, M; Lévêque, F. 1998). Where the court imposed at least a daily fine in case of non-conformity, the draft law leaves a blank void. There is no deadline for the transition towards exception-friendly DRM, except a hazy rule that such initiatives would have to be taken "with a reasonable delay". Neither does the draft law foresee an independent body that would supervise the value and success of such initiatives to make DRM more exception-friendly. A vague reference is given that initiatives are made in agreement with interested parties. It is unclear who these interested parties are, if they must include representatives of consumer or public interests, what influence interested parties actually do have to bring in their interests effectively, etc.

Neither does Article 8 stipulate what shall happen if DRM users do not obey. According to the present draft: nothing. In the worst case, frustrated beneficiaries could take their case before the new arbitration body (that is to be created according to Article 9 of the draft law). The arbitration body can order DRM users to undertake initiatives necessary to benefit from an exception. Insofar, Article 9 of the French draft law resembles e.g. the Danish solution of a Copyright Tribunal (in § 75 d (1) of the Danish Copyright Act) (as to possible problems with this solution, see Foged 2004). Unclear is whether consumers (and consumer organizations) will still be able to bring DRM cases before courts, or whether they will in future have to file their complaints with the arbitration board first. In the latter case, the draft proposal might effectively set an end to a slowly but surely emerging body of case law in favor of consumer interests and DRM in France.

Equally problematic is the tendency that is expressed in the French draft as well as in the EUCD to protect the existence of exceptions in the offline environment, while accepting that they are overridden by technological measures and contracts in the online environment. It is difficult to see why the exceptions and limitations of copyright law should not apply in the online world. This is a technology-dependent approach that is likely to fail completely in the age of convergence. The fact that the danger of abuse is, as the argument goes, higher in an online environment does not alter the basic considerations about cultural exchange, freedom of expression, personal autonomy, information equality, etc. that have motivated the exceptions in the first place.

And even for the offline environment, the French draft law basically issues a charter to DRM users to override existing exceptions and limitations except the two mentioned in the draft Article 8: private copying and exceptions in favour of disabled persons. Why these two? In the public discussion around DRM and copyright exceptions, those are the ones discussed most loudly and that have, hence, the most political explosive potential. This, however, also demonstrates the danger of a too narrow discussion about DRM: important interests of the press, of artists, of libraries, universities and social institutions are too easily overlooked. For the protocol: the DRM-and-consumer-debate is not only about CDs and DVDs and private copying. It is about all kinds of digital content – text, news articles, books, games, film on or offline – and the various and diverse interests attached to its creation and dissemination.

It would seem that the Ministry of Culture is persistently trying to turn a deaf ear to the noise on French streets and in French courts. But France is in the national and international spot-lights: now is the time to act and to solve the conflict between DRM and copyright exceptions! Vive la balance!

Bottom line
Do we expect too much from France – every 217 years a new revolution (cf. Imhof 2005)? No, not at all. Over the past few years and thanks to the efforts of French consumer representatives, a public discussion has developed in France about DRM and consumers. This is a discussion that has influenced the way to look at DRM far beyond the borders of France. Creating the conditions for a more consumer-friendly DRM environment is not revolutionary – it is an increasingly widely acknowledged necessity for the functioning of the information society.

The basic approach being discussed presently in France in courts and parliaments – to hold DRM users liable for compliance with the law – is a hesitant step in the right direction. Liability alone however is not enough. Such an approach must be accompanied by measures that guarantee that DRM users take timely initiatives, and that such initiatives are effective and reflect the interests of all parties, including those of consumers.

Sources

About the author: Natali Helberger is senior project researcher at the Institute for Information Law (IViR), Amsterdam. She specialises in the regulation of converging media- and communications markets, electronic control of access to information and information services and the interface between technique and law, European media and intellectual property law. Ms. Helberger participates in the INIDCARE project as legal partner. Contact: helberger@ivir.nl

Status: first posted 01/03/06; licensed under Creative Commons; included in the INDICARE Monitor of February 2006
URL: http://www.indicare.org/tiki-read_article.php?articleId=181